By Ioannis Karamarias∗
For most people, the EU Settlement Scheme has largely been considered as a generous and straightforward scheme to the EU citizens, (and their EU or non-EU family members), who are currently residents in the UK and are eligible to make use of such scheme in order to obtain pre-settled, (if they have been residents in the UK for less than 5 years), or settled status, (if they have been residents in the UK for at least 5 years); but confusion over permitted absences is likely to cause problems to some European residents in the UK, (or their family members).
People with pre-settled status need to be aware of the absence rules. If they are outside the UK for more than six months in any 12-month period during the five years it takes to qualify for settled status, they will generally have to go back to “square one” and re-start the clock leading to five years’ residence, all over again from the beginning. And in case they have been outside the UK, (for any reason), and return on 31st December 2020 but after 11.00 AM, then, they may entirely lose the right to apply for and obtain settled status.
Absences from the UK and the EU Settlement Scheme
The starting point is that EU citizens and their family members will be eligible to apply settled status after completing “a continuous qualifying period of five years of residence” in the UK. Those living in the UK for less than five years will qualify for pre-settled status instead, and can subsequently apply to the Home Office with a view to obtain settled status once they reach five years of residence in the UK.
A “continuous qualifying period” is defined in Appendix EU of the Immigration Rules, (it is the legal framework, introduced on 30th March 2019 to render the EU Settlement Scheme functional), as being a period of residence that began before 11.00 pm of 31st December 2020 and which has not been broken by one of the following:
- Absence(s) from the UK exceeding a total of six, (6), months in any 12-month period, which is, however, subject to some exceptions that will be discussed in the paragraphs below.
- A sentence that was executed in prison by the EU citizen, (and resident in the UK), in question. (or a family member of his).
- A deportation, exclusion or removal decision or (a general) order against the EU citizen, (and UK resident) in question, (or a family member of his), issued by the Home Office or a UK government authority.
In this article, we will focus on the issue of the absences from the UK.
How to calculate absences
Firstly, it is worth noting that the six-month cap is not limited to a single lengthy period of absences outside the UK. It also applies to multiple trips from the UK abroad and stay of the EU resident in the UK in question, (or an EU or non-EU family member of his), outside the UK for a period of more than six, (6), months.
Secondly, the rules refer to absence(s) during “any 12-month period”. In other words, the Home Office will not just be looking at the EU citizens’, (or his family member’s), trips from the UK, abroad, during a calendar year. They will, instead, consider a “rolling” period of 12 months, which “resets”, namely it starts counting from the beginning of every trip abroad, (that is made by the said EU resident in the UK or a family member of his). This means Applicants who travel frequently from the UK, abroad, have to keep a very close eye on the time-schedule of each of their trips, separately.
Thirdly, such absences are only relevant to the “qualifying period” relied upon. Once the Applicants for pre-settled or settled status complete the five-year qualifying period in the UK, they will lose their right to apply for settled status only if they spend five years or more outside the UK, (it is the so-called “supervening event”, namely an event that causes a disruption to a previous existing and established situation).
What is less straightforward is how exactly such absences are calculated; the issue is that every month of the year has different lengths and, therefore, when Appendix EU sets a six-month limit on absences, to how many calendar days does this essentially amount?
What constitutes a “month” is not defined, (under a legal point of view), neither in Appendix EU, nor in the Immigration Rules or in any of the pre-Brexit provisions for EU citizens, contained in the Immigration (European Economic Area) Regulations 2016. But other kinds of Immigration applications, (even those related to non-EU citizens on Leave to Remain in the UK), may well provide a clue; for instance, for the purposes of Immigration applications for Indefinite Leave to Remain in the UK, the Guidance of the Home Office defines the period of one month as “a period of 30 calendar days”. This practically means that six, (6), months equals 180 days. This is slightly less than half a year; if one, (1), year consists of 365 days, a period of six, (6), months, would amount to 182.5 days exactly.
However, there is no clear answer when it comes to the Settlement Scheme. An Immigration Law expert could well advise an Applicant for pre-settled or settled status who has already reached 180 days of absence from the UK, to play it safe and avoid exceeding this limit. At the same time, it would seem awkward, (both under a legal and a logical point of view), an application to be refused on the grounds of 182 days of absence from the UK, seeing that there is no further clarification as to the accurate number of days of the Applicant’s in question absence from the UK within a period of twelve, (12), months.
When counting days of absence, what is valid is that only an entire day’s absence from the UK will count. So if the Applicant for pre-settled or settled status, leaves, for instance, the UK on 2nd March and returns on 3rd March, this will not be considered to be an absence from the country. If the said Applicant returns on 4th March instead, this will be only one day’s absence.
Finally, at present there is no need that the Applicant for pre-settled or settled status in the UK, should list the exact dates of travel outside the UK, (and therefore, the total number of absences from the UK), as part of an EU Settlement Scheme application. The Applicant in question simply needs to self-certify and self-affirm that he/she has spent no more than six months outside the UK in any 12-month period.
This suggests a more flexible approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will keep a record of the trips of the Applicant in question, where e-Gates have been used at airports, registering the said Applicant’s trip abroad and his return, or by having his/her passport stamped, (in case the Applicant for pre-settled or settled status is a non-EU national and family member of an EU national, the latter being a UK resident on pre-settled or settled status); this essentially means that honesty by the part of the Applicant in question is always the best policy in relation to the number of days he/she will have to consider as absences from the UK, in the ambit of his/her application for pre-settled or settled status in the UK he will fill in and submit to the Home Office.
Exceptions to the six-month rule
There are some exceptions for absences from the UK, which are longer than six months but they come into force under very specific circumstances. These include periods of absences from the UK because the Applicant, (for pre-settled or settled status), has to do his compulsory military service, (in his native country), or works for the Crown and has been appointed in a Crown position abroad, or he has to spend time working outside the UK’s marine area “as a merchant seaman”.
In addition, Applicants can be granted “a single period of absence” that does not exceed twelve, (12), months and which is “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. But there is no exhaustive list of “important or exceptional reasons”. This means other situations may also qualify as an “important reason”: for example, the Applicant in question has to stay abroad for more than six, (6), months, because he/she has to act as a carer for a critically or terminally ill parent.
Evidence of the reasons for the absence will be requested in all cases. This could take the form of hospital records, an employer’s letter or university confirmation of a study abroad requirement, for example.
What happens if the Applicant in question exceeds or is about to exceed the limit of six, (6), months’ absence?
Absence(s) of more than six months that do not fall within one of the exceptions will break a person’s “continuous qualifying period”. This means that the person has to begin a new five-year continuous qualifying period from the date they return to the UK until he completes five years of residence in the UK, in order to be considered eligible to apply for settled status.
But, for the moment at least, it does not mean the Applicant needs to leave the UK or that the person’s pre-settled status comes to an end. In fact, pre-settled status lapses only if the Applicant in question is absent for at least two, (2), years from the UK. This is according to the EU Settlement Scheme provisions, reflecting section 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000: “where the holder has stayed outside the United Kingdom for a continuous period of more than two years… any leave then remaining (where the leave is limited) shall thereupon lapse”.
But, here, there are two very important caveats. First, those individuals who have broken their continuous residence period of residence in the UK will have to re-apply for pre-settled status before they can ensure that they are eligible to apply for settled status. That is because pre-settled status cannot be renewed or extended, so any absence of at least two years from the UK will leave the individuals in question short of the period of five years they, at least, need to stay in the UK as residents in order to qualify for settled status; moreover, there is no alternative way of making up this time, (of absence of more than two years from the UK), before being able to apply for settled status.
How all the above principles apply. (a practical example).
Maria is from Greece. She moved to the UK in April 2017 and was granted pre-settled status under the EU Settlement Scheme, (which came into force on 30th March 2019), in April 2019. Therefore, Maria expects to qualify for settled status in April 2022.
In April 2020, Maria happens to be in Greece on a visit home and has no choice but to stay and ride out the coronavirus pandemic there. She, finally, returns to the UK in December 2020, after seven months of absence from the country. As Maria has been out of the UK for more than six months, she can no longer qualify for settled status until December 2025, namely, she has broken the period of at least six, (6), months’ residence in the UK and, therefore, she will now be able to qualify for settled status, only after having completed a continuous period of five years’ residence. On the other hand, since she has been out of the UK only from April 2020 to December 2020, namely for less than two years, she still preserves the pre-settled status she had originally obtained in April 2019. But her pre-settled status will expire in April 2024, namely five years after it was granted. Maria cannot extend her existing pre-settled status beyond March 2024, so she would be unable to preserve it until November 2025. Therefore, under this point of view, she will have no choice but to re-apply for pre-settled status upon her return to the UK, in December 2020.
Another issue in this case, is that the settled status clock cannot be re-started after 31st December 2020. This is due to how a “continuous qualifying period” is defined in Appendix EU: such a “period” must start before 11pm, on 31st December 2020. Therefore, if someone already on pre-settled status exceeds the permitted periods of absences, (of six months, or more than 180 in an overall of 12 months), and returns to the UK after 31st December 2020, he/she will be unable to restart the settled status clock, and thus, qualify for settled status after five years of residence in the UK.
Maria, (who, as we are aware from “Example One” returned to Greece in April 2020 and had to ride out the coronavirus pandemic there), finally returns to the UK in February 2021. She still preserves her pre-settled status, (she had originally obtained in April 2019), and, therefore, has no trouble getting back into the UK.
However, when Maria will apply to obtain settled status, five years after her return to the UK, (in February 2026), her application will, then, be refused by the Home Office. Her continuous residence in the UK was broken by the absence of over six months from the country, (namely from April 2020 to December 2020), and because of the fact that she failed to return to the UK on 31st December 2020 before 11.00 PM, it is no longer possible for her to begin a new continuous qualifying period after 31st December 2020. Maria will likely have to leave the UK when her pre-settled status expires, unless she can prove that she is eligible to get into a new category of Leave to Remain which is not related to the Settlement Scheme.
On the other hand, someone in this situation could well rely on the exceptions analysed in the relevant paragraph above, and argue that his/her continuous qualifying period had not been interrupted by the lengthy absence exceeding the allowed period of six, (6), months. It is still possible that the Home Office caseworkers will be sympathetic to absences related to the coronavirus pandemic, (for individuals who had travelled outside the UK just before the outbreak of the pandemic and due to quarantine measures and other restrictions may well have to ride out the coronavirus pandemic outside the UK, thus staying outside the UK for more than six months), or that the Home Office will introduce a new general exception making more generous allowances to those UK residents, (EU citizens or their EU or non-EU family members who wish to apply for pre-settled or settled status).
It is to be noted that these days the Home Office is considering something along the coronavirus pandemic lines. But if no announcement is made, the rules as written suggest that pre-settled status holders who return to the UK later than the end of this year will be in trouble if they have been absent for more than six months from the UK.
Possible causes of confusion
The Settlement Scheme may grant periods of grace that Applicants need to consider, so to re-capitulate:
- EU citizens and their, (EU or non-EU), family member may well qualify for settled status after a “continuous qualifying period” of five years’ residence in the UK
- A “continuous qualifying period” is broken by absence(s) of more than six months in any rolling 12-month period (unless that absence falls within one of the above exceptions).
- Pre-settled status lasts for five years. If holders of pre-settled status breaks their continuous residence but return to the UK before 31st December 2020, they must apply for a new grant of pre-settled status to allow them to complete the “continuous qualifying period” of five years required for settled status.
- Pre-settled status is only lost through two years of absence from the UK, but this may turn out to be misleading, for the reasons explained above.The right to proceed from pre-settled status to settled status is lost if the continuous qualifying period is broken and the Applicant in question returns to the UK on 31st December 2020, after 11.00 PM.
- Once the Applicant in question has already completed a “continuous qualifying period” of five years, he/she can spend up to five years outside the UK still preserving the right to apply for settled status.
Overall, absences may not be fatal to a settlement application or a person’s right to stay in the UK in the long term, but they certainly need to be approached carefully and sensibly with a full understanding of the risks involved, which were discussed and analysed above.
∗ Ioannis Karamarias, LLB (Hons), LLM (Univ. of Bristol), LLM, (Queen Mary University), is Solicitor (England and Wales).